UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 1965.CDC.7

February 11, 1965. Decided

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT

J. SKELLY WRIGHT, Circuit Judge:

The appellants in this case were convicted of a conspiracy to commit an offense against the United States *fn1 by influencing the actions of one Jean Smith, a material witness in an earlier criminal prosecution against appellant Forte. *fn2 Each appellant here was also convicted of the substantive offense of corruptly endeavoring to influence Mrs. Smith in her actions as a witness. *fn3

The case for the prosecution rested chiefly on the testimony of Bernice Gross, who was named as a third member of the alleged conspiracy but was not indicted. It appears that she had acted as an intermediary between the appellants and the target witness, Mrs. Smith. Mrs. Gross testified to numerous conversations with each appellant concerning her role in the scheme, and also stated that on one occasion appellant Laughlin had instructed her to have Mrs. Smith write a letter to the United States Attorney asking him to excuse her from appearing in the criminal case against Forte. Such a letter was actually sent and was introduced by the Government as evidence in this case. Mrs. Gross further testified that on several occasions she had received sums of money from appellant Forte which she delivered to Mrs. Smith.

The testimony of Mrs. Gross was corroborated by Mrs. Smith, who acknowledged receiving gifts of money from Mrs. Gross and writing the letter to the United States Attorney at the suggestion of Mrs. Gross. Mrs. Gross' story was also corroborated by tape recordings, offered by the Government, of four telephone conversations between Mrs. Gross and appellant Laughlin which occurred some time after the alleged conspiracy had ended. *fn4 Of the numerous points raised on appeal, the primary contention of the appellants is that these recordings should not have been admitted as evidence in this case. I.

The same tape recordings introduced in this case were also involved in a prior case, Criminal No. 599-63, in which appellant Laughlin was tried on a charge of perjury. In that case, the Government introduced the recordings in evidence, but subsequently, on Laughlin's motion, the court declared a mistrial, holding that they should have been excluded. The court found that the recordings had been made in violation of Section 605 of the Communications Act *fn5 since they were made without the consent of Mrs. Gross. *fn6 The indictment in Criminal No. 599-63 was thereafter dismissed on the ground that, excluding the recordings, the evidence before the grand jury was not sufficient to sustain the indictment. *fn7

In the trial of this case, Laughlin contended that under the doctrine of collateral estoppel the Government should have been precluded from relitigating the question of whether Mrs. Gross' consent to the making of the recordings was coerced. The trial court rejected this contention, found that Mrs. Gross' consent was freely given, and admitted the recordings into evidence. We hold that in so doing the court erred. II.

The doctrine of collateral estoppel, developed largely in the context of civil litigation, is designed to prevent repetitious litigation of the same issue by the same parties. *fn8 It applies generally to preclude relitigation of an issue resolved by final judgment in a prior legal action. *fn9 While some of the policies underlying the application of the doctrine may be different, *fn10 it is well established that the principles of collateral estoppel apply in criminal, as well as in civil, litigation. *fn11 This much is not controverted.

The contention of the Government is that, in the particular circumstances of this case, the doctrine should not apply. Conceding that the issue of admitting the recordings was litigated on Laughlin's motion for mistrial in Criminal No. 599-63, the Government points out that Judge Youngdahl's order granting that motion was not a final judgment. Admitting that Judge Curran's dismissal of the indictment in Criminal No. 599-63 was a final judgment, the Government contends that the issue as to the admissibility of the tapes was not litigated during the hearing on the motion to dismiss. *fn12 By thus separating the two prerequisites for collateral estoppel - full litigation and final determination - the Government seeks to show that the issue of whether Mrs. Gross voluntarily consented to the recordings was open for resolution in the present case.

We see no reason why this separation should have the effect sought. When the question of Mrs. Gross' consent was litigated before Judge Youngdahl on the motion for mistrial, both the Government and appellant had full opportunity to present, and presumably did present, whatever relevant evidence they had. Judge Youngdahl ruled against the Government. *fn13 Although the Government did not challenge the ruling, the fact of coercion, as found by Judge Youngdahl, was essential to Judge Curran's disposition of the motion to dismiss the indictment. He had the transcript of the record made before Judge Youngdahl before him. He had Judge Youngdahl's opinion before him, and since he agreed that the tape recordings were illegally made, he dismissed the indictment for lack of competent evidence. *fn14

Here, after a determination that Mrs. Gross' consent was not voluntary, the proceedings in Criminal No. 599-63 had been terminated. The Government then had the right to appeal. On this appeal the findings of the trial court would have been subject to review. Hence, this was not a situation where the Government was to be bound by an order not subject to review. *fn15

One final matter requires discussion. Relying on the distinction drawn by the court's opinion in The Evergreens v. Nunan, *fn16 the Government contends that the fact in issue here was not an ultimate fact. In Yates v. United States, 354 U.S. 298, 338, 77 S. Ct. 1064, 1087, 1 L. Ed. 2d 1356 (1957), the Supreme Court said that "[the] normal rule is that a prior judgment need be given no conclusive effect at all unless it establishes one of the ultimate facts in issue in the subsequent proceeding. So far as merely evidentiary or 'mediate' facts are concerned, the doctrine of collateral estoppel is inoperative. [Citing Evergreens.]" Thus the Government contends that the doctrine is inoperative in this case.

Whether or not the Evergreens distinction applies generally to criminal cases, *fn17 its application to this case does not prevent the operation of collateral estoppel. "Ultimate facts" are defined in Evergreens as "those which the law makes the occasion for imposing its sanctions." 141 F.2d at 928. The coercion of Mrs. Gross is such a fact. Because her consent was coerced, the listening in to the telephone conversation was an "interception" in violation of the Communications Act. *fn18 On that account, the intercepted conversations cannot be used as evidence. *fn19 Moreover, the evil which the court in Evergreens sought to avoid will not result from estopping the Government from disputing the fact of coercion in this proceeding. In Evergreens the court, by limiting collateral estoppel to facts which are ultimate in the subsequent proceeding, sought to prevent the use of prior determinations to support inferences which were totally unforeseeable at the time of the prior litigation. *fn20 In this case, no inference from the fact of Mrs. Gross' involuntary consent is drawn which was not foreseeable earlier. Indeed, the only "inference," if it may be called that, which is drawn in this case is the same drawn in the prior case, that is, that the telephone conversations were intercepted in violation of the law. Moreover, since both this indictment and the one in No. 599-63 were returned by the same grand jury, *fn21 the Government cannot in good faith claim, nor does it claim, surprise that the same issue should arise in the two cases.

The plain fact is that the Government, after fully, but unsuccessfully, litigating the admissibility of the tapes, sought to litigate it again. After two trial judges had held the tapes inadmissible, the Government asked a third to admit them. After Judge Curran rendered final judgment in the District Court, the Government should have pursued its appeal or acquiesced in the judgment. III.

Since we hold the recordings inadmissible, we must now consider whether their admission requires reversal as to both appellants. The jury was carefully instructed that the recordings were only to be considered evidence against appellant Laughlin, and that, even as to him, they could only go to show his participation in the conspiracy, not his guilt on the substantive charge. But the natural effect of the recordings was to compensate for the questionable credibility of Mrs. Gross. *fn22 In the recorded conversations, the parties apparently assume the occurrence of the transactions which Mrs. Gross had related. *fn23 After hearing the recordings, the jury would certainly tend to give more credence to Mrs. Gross' entire testimony than if they had not heard them. Since the conviction of appellants on each count depended heavily on the testimony of Mrs. Gross, we cannot say that there was not "a reasonable possibility that the evidence complained of might have contributed to the conviction." *fn24 The court's limiting instruction does not cure the prejudicial effect of evidence which is competent against neither Forte nor Laughlin. *fn25 We therefore hold that the convictions of both appellants on each count of the indictment should be reversed. IV.

On the day the case was set for trial, appellant Laughlin filed an affidavit of bias and prejudice against the District Judge *fn26 assigned to hear the case. Since the affidavit was filed after the same judge had presided, without objection, for two days over hearings on pre-trial motions, it was correctly regarded as untimely. In re United Shoe Machinery Corporation, 1 Cir., 276 F.2d 77 (1960); Laughlin v. United States, 80 U.S. App. D.C. 101, 151 F.2d 281, cert. denied, 326 U.S. 777, 66 S. Ct. 265, 90 L. Ed. 470 (1945). If on remand, however, the case should be assigned to the same District Judge, the affidavit should be considered. If it is found to be legally sufficient, the District Judge should, in accordance with 28 U.S.C. § 144, "proceed no further" herein. See Green v. Murphy, 3 Cir., 259 F.2d 591, 593, cf. dissent at 596 (1958). *fn27

Reversed and remanded.

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